Z. J. GIFTS v. CITY OF LITTLETON
FILED
United States Court of Appeals
Tenth Circuit
NOV 18 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Z. J. GIFTS D-4, L.L.C., a Colorado No. 01-1220
Limited Liability Company, doing
business as Christal's,
Plaintiff - Appellant,
v.
CITY OF LITTLETON, an Incorporated
Home Rule Municipal Corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 99-N-1696)
Michael W. Gross (Arthur M. Schwartz with him on the briefs) of Schwartz &
Goldberg, P.C., Denver, Colorado for the Plaintiff-Appellant.
J. Andrew Nathan (Heidi J. Hugdahl with him on the brief) of Nathan, Bremer,
Dumm & Myers, P.C., Denver, Colorado for the Defendant-Appellee.
Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
LUCERO, Circuit Judge.
LUCERO, Circuit Judge.
This case raises several First Amendment issues, including one in which
the circuits are substantially divided: namely, the extent to which prompt
judicial review must be assured in adult-business licensing cases. Plaintiff Z.J.
Gifts D-4, L.L.C. ("ZJ") brought an action under 42 U.S.C. 1983 challenging
the City of Littleton's ("City's" or "Littleton's") adult business ordinance as
unconstitutional, seeking declaratory and injunctive relief, attorney's fees, and
damages. The district court granted summary judgment to the City. We have
jurisdiction under 28 U.S.C. 1291, and we reverse in part and affirm in part.
I
In 1993, the City passed an ordinance requiring businesses that
specialize in adult entertainment or merchandise to obtain licenses, and
restricting those businesses to certain areas of Littleton. Before passing its
ordinance, the City Council heard testimony and reviewed reports from other
cities concerning deleterious effects of adult businesses on property values
and on crime rates.
In the fall of 1999, ZJ opened its store, known as Christal's, on South
Broadway in Littleton. Prior to the opening of Christal's, the City informed
the owner of the property on which Christal's was located that adult businesses
were not permitted at this South Broadway location. In late August
1999-shortly before Christal's opened-ZJ filed a 1983 suit against the
City seeking monetary, declaratory, and injunctive relief. ZJ's complaint
alleged that Littleton's ordinance was unconstitutional because, among other
things, it infringed ZJ's First Amendment rights. ZJ also alleged that it did not
intend to operate an "adult business establishment" as defined in Littleton's
ordinance. (1 Appellant's App. at 11.)
On cross-motions for summary judgment, the district court ruled in favor
of the City, concluding that ZJ was covered by Littleton's ordinance and that
the ordinance was, in its entirety, constitutional. After the district court's
decision in this case and during the briefing for this appeal, the City amended
its ordinance, clarifying certain corporate disclosure requirements and
changing an age restriction for adult businesses that do not offer live
entertainment. Littleton, Colo., Ordinance 13 (2001) (codified at Littleton,
Colo., City Code 3-14-2, -5, -8, -16 (2002)).
II
Both as originally enacted and as amended, Littleton's ordinance has two
primary functions: (1) it requires all adult businesses within Littleton to
obtain licenses to operate within the City's borders, and (2) it restricts those
businesses to certain sections of the City and requires that they not locate
within a minimum distance of other specified sites.
Among the adult businesses covered by Littleton's ordinance, Christal's
would most likely qualify as an "adult bookstore, adult novelty store, or adult
video store." Littleton, Colo., City Code 3-14-2. A commercial
establishment falls into this category if, as judged by percentage of stock-in-
trade, revenue, or advertising, it is primarily devoted to the sale of materials
that are characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas," regardless of whether the
establishment has other business purposes. Id. "Specified anatomical areas"
are further defined as: "(A) Less than completely and opaquely covered human
genitals, pubic region, buttocks, anus or female breasts below a point
immediately above the top of the areolae; or (B) Human male genitals in a
discernibly turgid state, even if completely and opaquely covered." Id.
"Specified sexual activities" are defined to include masturbation, fondling of
the genitals and other specified areas, excretory functions, human genitals in a
state of "sexual stimulation, arousal or tumescence," and "normal or perverted"
sex acts. Id.
No adult business covered by Littleton's ordinance may operate within
five-hundred feet of a church, school, child-care facility, public park, massage
parlor regulated by local ordinances, or community correctional facility. Id.
3-14-3. Adult businesses also may not operate within one-thousand feet of
each other or a massage parlor regulated by state law. Id. In addition, multiple
adult businesses may not operate within the same structure. Id.
Under Littleton's ordinance, operation of an adult business within the
City requires a license. Among other things, a license application must
indicate or provide: names of all owners, managers, and employees of the
business; information about whether the applicant has had an adult-business
license denied, revoked, or suspended by any jurisdiction; an indication
whether the applicant has adult-business licenses from other jurisdictions; the
address, driver's license number, and social security number of the applicant
and all owners, managers, and employees; a floor plan for the proposed
business; a written statement by the City's Zoning Officer that the proposed
location is in compliance with the ordinance; and a statement of whether an
owner, manager, or employee of the business has been convicted of specified
criminal acts.(1) Id. 3-14-5. Certain specified persons must also be
fingerprinted and photographed by the Police Department. Id.
After an application has been submitted, the City Clerk has thirty days to
approve or deny the license. Id. 3-14-8. The Clerk may deny an application
for one or more specified reasons, including: the applicant is under twenty-
one years old; the applicant has made a false statement on the application; the
applicant or any owner has had an adult-business license revoked or suspended
within Colorado in the past year; the applicant has operated an adult business
deemed to be a public nuisance in the past year; a corporate applicant is not in
(1) In amending its ordinance in 2001, the City added more specific
corporate disclosure requirements, but did not significantly alter the key
provisions. Littleton, Colo., Ordinance 13 (2001).
good standing or authorized to conduct business in Colorado; the applicant is
overdue in any city taxes, fees, fines, or penalties assessed in relation to an
adult business; the applicant has failed to obtain the required sales-tax license;
or the applicant has been convicted of specified criminal acts. Id. Specified
criminal acts for the purposes of the ordinance are defined as: "Sexual crimes
against children, sexual abuse, rape or crimes connected with another adult
business, including distribution of obscenity, prostitution, pandering or tax
violation." Id. 3-14-2.
If the clerk denies the application, the applicant then has twenty days to
appeal the denial to the City Manager,(2) who must hold a hearing within thirty
days. Id. 3-14-8. If that appeal is denied, the applicant may seek review in
state court pursuant to Colorado Rule of Civil Procedure 106(a)(4). Id.
Licenses are issued for one-year terms and may be renewed only by filing
a renewal application. Id. 3-14-9, -10. Licenses may be suspended for one
or more specified grounds. Id. 3-14-11. Suspension or revocation may only
occur after a hearing before the City Manager and may be appealed to state
court. Id. Finally, under the amended ordinance, all adult businesses in
(2) This is the time limit under the amended ordinance. Before the
amendments, the ordinance gave the applicant only ten days to request a hearing
before the City Manager. Littleton, Colo., Ordinance 27 (1993).
Littleton that do not provide live entertainment are required to restrict
entrance to individuals who are eighteen or older.(3) Id. 3-14-16.
III
We initially determine whether there is an Article III case or controversy
before us. Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th
Cir. 2002). Standing is an essential part of the case-or-controversy
requirement of Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). There are three elements to Article III standing: (1) injury-in-fact, (2)
causation, and (3) redressability. Essence, 285 F.3d at 1280. An injury-in-fact
is an "`invasion of a legally protected interest' that is (a) concrete and
particularized and (b) actual or imminent, i.e., not conjectural or hypothetical."
Id. (quoting Defenders of Wildlife, 504 U.S. at 560). Causation requires a
showing that the injury is "`fairly trace[able] to the challenged action of the
defendant,' rather than some third party not before the court." Id. (quoting
Defenders of Wildlife, 504 U.S. at 560). Redressability means that it is "likely
that a favorable court decision will redress the injury of the plaintiff." Id.
"The burden to establish standing rests on the party invoking federal
jurisdiction." Id. When the case has been resolved in the district court on
summary judgment grounds, "`a plaintiff must establish that there exists no
(3) Under the original ordinance, admission to all adult businesses was
limited to persons over twenty-one. Littleton, Colo., Ordinance 27 (1993).
genuine issue of material fact as to justiciability,' and `mere allegations' of
injury, causation, and redressability are insufficient." Id. (quoting Dep't of
Commerce v. United States House of Representatives, 525 U.S. 316, 329
(1999)).
A
Standing usually requires that the plaintiff assert an injury to himself,
rather than injuries to third parties not before the court. However, this rule is
not strictly enforced in the context of facial challenges to laws as violative of
the First Amendment, even though a facial challenge to the validity of a statute
necessarily entails a challenge to the statute as applied to third parties besides
the plaintiff:
In the area of freedom of expression it is well established that one
has standing to challenge a statute on the ground that it delegates
overly broad licensing discretion to an administrative office,
whether or not his conduct could be proscribed by a properly drawn
statute, and whether or not he applied for a license.
Freedman v. Maryland, 380 U.S. 51, 56 (1965); see also FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 223 (1990) (opinion of O'Connor, J.) ("Although
facial challenges to legislation are generally disfavored, they have been
permitted in the First Amendment context where the licensing scheme vests
unbridled discretion in the decisionmaker and where the regulation is
challenged as overbroad."). "A form of unbridled discretion is the failure to
place brief, specific time limits on the decision-making process." Nightclubs,
Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000); see also FW/PBS,
493 U.S. at 22324 (opinion of O'Connor, J.) (stating that unbridled discretion
includes licensing schemes that create a "`risk of delay' such that `every
application of the statute creates an impermissible risk of suppression of
ideas'" (quotations omitted)).
Littleton's ordinances include within their purview sexually explicit
speech, and the City does not contest that this speech is protected by the First
Amendment. ZJ's challenge to Littleton's licensing system is based both on a
claim that the City vests too much discretion in licensing officials in granting
or denying a license, and that the system creates a risk of delay in granting or
denying a license. Thus, ZJ has standing to bring a facial challenge to the
licensing system on these two grounds.
It is true that the overbreadth doctrine discussed above "does not
eliminate the need for the plaintiff to demonstrate its own cognizable injury in
fact." Nat'l Council for Improved Health v. Shalala, 122 F.3d 878, 883 (10th
Cir. 1997). But this requirement is satisfied where the plaintiff is engaged "in
a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution."
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Such
a plaintiff need not wait until an actual criminal prosecution has begun. Id.
ZJ's business depends in part on its ability to sell materials that are
protected by the First Amendment. ZJ has alleged in its complaint that the City
views it as an adult business that is in violation of the licensing requirements
of the ordinance, and it has also presented a letter from the City denying ZJ's
sales-tax license application because ZJ's business "may be categorized as an
adult business." (3 Appellant's App. at 450.) ZJ has thus adequately shown
that, at least from the City's perspective, its business is proscribed by the
ordinance.
Finally, the City has proceeded with a civil complaint in state court
against ZJ for violation of the ordinance based on ZJ's failure to apply for an
adult-business license and ZJ's operation of an adult business without a
license.(4) While ZJ's sales-tax license application was denied and a civil
complaint was brought in state court only after ZJ's federal complaint was
filed, these events nonetheless are evidence that when ZJ filed its lawsuit there
was "a credible threat of prosecution" under Littleton's ordinance and that the
threat of prosecution continues. Babbitt, 442 U.S. at 298; see also id. at 302
(indicating that standing exists "when fear of criminal prosecution under an
(4) In supplemental briefing the City explicitly waived the applicability of
abstention under Younger v. Harris, 401 U.S. 37 (1971). A state may
voluntarily submit to federal jurisdiction even though it might have had a
tenable claim for abstention. See Ohio Civil Rights Comm'n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 626 (1986) (citing cases in which Younger
abstention was waived).
allegedly unconstitutional statute is not imaginary or wholly speculative"). ZJ
has satisfied the injury-in-fact requirement because the City has taken steps to
enforce the ordinance against ZJ.(5)
B
ZJ also has standing to challenge the location requirements in Littleton's
ordinance. Both parties agree that ZJ's business is located on a site in which
adult businesses are not permitted under the ordinance. Based on the location
of ZJ's business, the City has refused to grant ZJ a sales-tax license, and the
City's complaint in state court is based in part on the location of ZJ's business.
This is sufficient evidence for ZJ to meet the injury-in-fact requirement. By
enacting and enforcing its ordinance, the City brought about ZJ's injury, and
injunctive and declaratory relief, if granted by this court, would redress ZJ's injury.
C
ZJ has challenged the provisions in Littleton's ordinance that require the
City to reject adult-business license applications when the applicant has been
convicted of specified past criminal acts. ZJ has never alleged that these
restrictions would apply to any of the owners or operators of ZJ's business. ZJ
therefore has not even argued that it might be affected by these provisions in
Littleton's ordinance, and accordingly it does not have standing to challenge
these provisions. See FW/PBS, 493 U.S. at 234 (stating that for a party to have
standing to challenge a similar provision in a Dallas ordinance, "the individual
must show both (1) a conviction of one or more of the enumerated crimes, and
(2) that the conviction or release from confinement occurred recently enough
to disable the applicant under the ordinance").
ZJ also attacks the ordinance's license revocation and suspension
provisions. ZJ, however, has never obtained a license from the City, nor has it
indicated that it plans to obtain a license. Instead, ZJ stated in its complaint
that it "does not intend to operate an adult entertainment establishment in a B-2
zone." (1 Appellant's App. at 11.) ZJ has neither alleged nor provided any
evidence that the licensing suspension or revocation proceedings will apply to
it. As it is "pure conjecture," Essence, 285 F.3d at 1281, whether ZJ will be
forced to comply with these provisions of the ordinance, ZJ likewise does not
(5) While ZJ has never applied for an adult-business license, this is not a
requirement for standing to mount a facial challenge against an ordinance. See
ACORN v. Municipality of Golden, 744 F.2d 739, 744 (10th Cir. 1984)
("Applying for and being denied a license or an exemption is not a condition
precedent to bringing a facial challenge to an unconstitutional law.").
ZJ, the City argues, has no standing to challenge the licensing
requirements of the ordinance becauseeven if such a challenge were
successfulZJ would nonetheless be in violation of the location requirements
of the ordinance. However, ZJ challenges both sets of requirements, and if
both challenges are successful, then ZJ will obtain its desired relief. See N.
Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 443-44 (7th Cir. 1996).
In addition, the parties' supplemental briefs reveal that the City is charging ZJ
with separately violating both the licensing and location requirements. Thus,
even if ZJ only succeeds in its challenge to the licensing provisions, it will
nonetheless obtain some relief against prosecution by the City.
have standing to challenge these provisions. Cf. id. (holding that an adult
business did not have standing to
challenge a city's provisions for the granting of a license because the business
already had a license and had not alleged any facts indicating that it would need
to reapply for a license).
D
ZJ decries as overly vague the ordinance's definition of an "adult
bookstore, adult novelty store, or adult video store" as a business that "devotes
a significant or substantial portion" of its floor space, inventory, or advertising
to adult materials, or that obtains "a significant or substantial portion" of its
revenue from those materials. Littleton, Colo. City Code 3-14-2.
In the First Amendment context, the Supreme Court has determined that a
plaintiff may have standing to challenge a statute as overly vague with respect
to third parties even if the suspect statute is "unquestionably applicable" to the
plaintiff. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 5960 (1976) ("On
several occasions we have determined that a defendant whose own speech was
unprotected had standing to challenge the constitutionality of a statute which
purported to prohibit protected speech, or even speech arguably protected.").
This "exception from traditional rules of standing" reflects the Supreme
Court's judgment that "the very existence of some statutes may cause persons
not before the Court to refrain from engaging in constitutionally protected
speech or expression." Id. at 59 60.(6)
Nevertheless, as the Court in Young explained, "if the statute's deterrent
effect on legitimate expression is not both `real and substantial,' and if the
statute is `readily subject to a narrowing construction by the state courts,' the
litigant is not permitted to assert the rights of third parties." Id. at 60 (citation
omitted, quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)).
In Young, the Court concluded that the ordinance in question did not have
a "real and substantial" deterrent effect on legitimate expression because
"there is surely a less vital interest in the uninhibited exhibition of material
that is on the borderline between pornography and artistic expression than in
the free dissemination of ideas of social and political significance." Id. at 61.
The same rationale applies equally to the present case. Adult businesses
covered by Littleton's ordinance are, by definition, likely to carry materials
that border on pornography. Stated simply, in light of Young, Littleton's ordinance does
not have a "real and substantial" deterrent effect upon
"legitimate expression."
As to the second issue raised by Young-whether the ordinance is readily
subject to a narrowing construction- we note that language similar to the
"significant or substantial" language used in this ordinance has been interpreted
previously by state courts in a sufficiently narrow manner to avoid
constitutional problems. A common method of narrowing construction has
been to develop a percentage that will act as a guide as to what constitutes
"significant or substantial." See, e.g., Dandy Co. v. Civil City of South Bend,
401 N.E.2d 1380, 138586 (Ind. Ct. App. 1980) (holding that a conviction
under a similar ordinance was sustainable where there was evidence that "50 to
80% of the inventory was adult in nature"); St. Louis County v. B.A.P., Inc., 25
S.W.3d 629, 63031 (Mo. Ct. App. 2000) (noting that a local adult-business
ordinance established a rebuttable presumption that a business carries "a
substantial portion" of adult-oriented items where more than twenty-five
percent of the retail value of the inventory consists of such items); City of
New York v. Les Hommes, 724 N.E.2d 368, 370 (N.Y. 1999) (noting that the
City of New York had clarified that a "substantial portion" for purposes of its
(6) Having reviewed the evidence provided by the parties in the present
case, including the videotape of the interior of ZJ's business, we conclude that
the ordinance is "unquestionably applicable" to ZJi.e., a "significant or
substantial" portion of ZJ's stock-in-trade, interior floor space, or revenue is
devoted to material that is "characterized by the depiction or description" of
the defined "specified sexual activities" or "specified anatomical areas."
adult-business ordinance meant at least forty percent). We conclude that "the
limited amount of uncertainty in the ordinance[] is easily susceptible of a
narrowing construction." Young, 427 U.S. at 61.
In short, we agree with the district court that ZJ "does not have standing
to challenge the constitutionality of [Littleton's ordinance] under the void for
vagueness doctrine." (3 Appellant's App. at 561.)
E
Finally, Littleton's ordinance as originally enacted prohibited individuals
under twenty-one years of age from being licensees, owners, managers,
employees, or customers of an adult business. ZJ argues that it is
unconstitutional to restrict individuals between the ages of eighteen and
twenty-one from entering or working in its business. We need not address ZJ's
challenge to the age restrictions, however, because the City has amended its
ordinance to provide that anyone over eighteen years of age may enter an adult
business that does not offer live entertainment.(7) Thus, ZJ's challenge to the
age restrictions on customers and employees of its business is now moot, and
we will not address it.
IV
We now address ZJ's claims that Littleton's licensing scheme grants
excessive discretion to licensing officials.
(7) To the extent that other provisions of Littleton's ordinance conflict
with this amendment, they have been repealed. Littleton, Colo., Ordinance 13,
9 (2001).
Because this case was decided on summary judgment, we review the
district court's decision de novo, applying the same legal standard as the
district court. Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance
Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c) para. 4. "When applying
this standard, we view the evidence and draw reasonable inferences therefrom
in the light most favorable to the non-moving party." Simms, 165 F.3d at 1326.
"If there is no genuine issue of material fact in dispute, we determine whether
the district court correctly applied the substantive law." Id. In the First
Amendment context, "[o]ur review of the record is more rigorous," and we are
"obligated to make an independent examination of the record in its entirety."
Essence, 285 F.3d at 1283 (quotation omitted).
Littleton's ordinance requires all adult businesses to obtain a license
prior to opening for business. "Adult businesses," as defined by the ordinance,
include adult bookstores and adult video stores, see Littleton, Colo., City Code
3-14-2, that sell materials presumptively protected by the First Amendment.(8)
(8) In the instant case, the City does not argue that the materials sold by
"adult businesses" are obscene and therefore unprotected by the First
Amendment. The City has therefore effectively made the same concession that
the City of Dallas made in FW/PBS: i.e., that the ordinance applies to
businesses that purvey speech protected by the First Amendment. See FW/PBS,
493 U.S. at 224 (noting that the Dallas ordinance largely targeted businesses
that purvey sexually explicit speech and no claim was made that such materials
were unprotected by the First Amendment).
A very similar licensing scheme was analyzed as a "prior restraint" on speech
by six of the Justices of the Supreme Court in FW/PBS. 493 U.S. at 22530
(opinion of O'Connor, J.); id. at 238 (Brennan, J., concurring). Following
FW/PBS, we have concluded that "licensing of adult entertainment
establishments" must be analyzed as a prior restraint. Essence, 285 F.3d at
1289 90.
Ordinarily, a duly enacted law is presumed to be constitutional. When a
law infringes on First Amendment rights, however, the proponent of the law
bears the burden of establishing its constitutionality. Wilson v. Stocker, 819
F.2d 943, 949 (10th Cir. 1987). Whether or not Littleton's ordinance is
content-neutral is not relevant to the burden of proof, because any "system of
prior restraint" comes to this court "bearing a heavy presumption against its
constitutional validity." FW/PBS, 493 U.S. at 225 (quotation omitted). In the
present case, therefore, the City bears the burden of establishing that
Littleton's ordinance is constitutional.
A
Standards for analysis of a prior restraint of speech were initially
developed in the context of censorship schemes in Freedman, where the
Supreme Court held that (1) a censorship scheme must assure the exhibitor, "by
statute or authoritative judicial construction, that the censor will, within a
specified brief period, either issue a license or go to court to restrain showing
the film"; (2) the censorship scheme must "assure a prompt final judicial
decision" following a refusal to license; and (3) "the burden of proving that the
film is unprotected expression must rest on the censor." 380 U.S. at 5859.
In FW/PBS, a divided Supreme Court considered whether Freedman's
procedural requirements applied to adult-business licensing schemes as well.
Two Justices joined Justice O'Connor in announcing the judgment of the Court
that the Dallas licensing scheme at issue was unconstitutional. FW/PBS, 493
U.S. at 229. Three other Justices concurred but would have gone further in
applying the Freedman requirements. Id. at 238 39 (Brennan, J., concurring).
Justice O'Connor's opinion characterizes Freedman as mandating that any prior
restraint "that fails to place limits on the time within which the decisionmaker
must issue the license is impermissible," FW/PBS, 493 U.S. at 226, because a
"scheme that fails to set reasonable time limits on the decisionmaker creates
the risk of indefinitely suppressing permissible speech," FW/PBS, 493 U.S. at 227.
The Court in FW/PBS determined that the Dallas ordinance failed to meet
this general
requirement because a license could not be approved without inspection and
approval by the fire department, the health department, and the building official
as being in compliance with relevant laws and ordinances. Id. Even though a
completed license application had to be approved or disapproved within thirty
days after submission, there was nonetheless a risk that the city could
endlessly delay those inspections and approvals in order to postpone
consideration of a license application because there was no time limit for the
inspections and approvals. Id. Concluded the Court: "Thus, the city's
regulatory scheme allows indefinite postponement of the issuance of a
license." Id.
Justice O'Connor then reiterated the Freedman procedural requirements:
[T]he following three procedural safeguards were necessary to
ensure expeditious decisionmaking by the motion picture
censorship board: (1) any restraint prior to judicial review can be
imposed only for a specified brief period during which the status
quo must be maintained; (2) expeditious judicial review of that
decision must be available; and (3) the censor must bear the burden
of going to court to suppress the speech and must bear the burden
of proof once in court.
Id. at 227. Concluding that the "first two safeguards are essential" to
preventing undue delay in the licensing process, id. at 228, and that the Dallas
licensing scheme "fails to provide an avenue for prompt judicial review" of a
license denial, id. at 229, Justice O'Connor's opinion held that Freedman's
third requirement-that the censor bear the burden of obtaining judicial action
and of proof-need not be applied in the context of adult-business licensing
schemes. Id. at 230.
The remainder of the Court was sharply divided. Justice Brennan, joined
by two other Justices, agreed that the Dallas ordinance was an unconstitutional
prior restraint, but would have applied all three of the Freedman procedural
requirements. Id. at 23839 (Brennan, J., concurring). Justice White, joined
by the Chief Justice, concluded that the Dallas ordinance was constitutional and
that none of the Freedman procedural requirements applied because the
ordinance was not a prior restraint. Id. at 245 (White, J., concurring and
dissenting). Justice Scalia concurred in part and dissented in part on other
grounds. Id. at 250 (Scalia, J., concurring and dissenting).
Faced with the fractured decision in FW/PBS, our sibling courts of
appeals have struggled to determine which of Freedman's requirements apply to
licensing schemes. Joined by several other circuits, we have concluded that the
first two Freedman requirements-maintenance of the status quo and
expeditious judicial review-are applicable to the licensing context. See
Essence, 285 F.3d at 1290; see also, e.g., Baby Tam & Co. v. City of Las Vegas,
154 F.3d 1097, 1100 01 (9th Cir. 1998); 11126 Baltimore Boulevard, Inc. v.
Prince George's County, 58 F.3d 988, 996 & n.12 (4th Cir. 1995); TK's Video,
Inc. v. Denton County, 24 F.3d 705, 70708 (5th Cir. 1994). With respect to
Freedman's third requirement-that the censor must bear the burden of going
to court and of proof-our circuit has not yet decided whether it is applicable
to adult-business licensing schemes. See Essence, 285 F.3d at 1290 n.17.
Other circuits, however, have held that the third requirement of Freedman does
not apply to licensing schemes that do not directly regulate content. See
MacDonald v. City of Chicago, 243 F.3d 1021, 103536 (7th Cir. 2001); Ward
v. County of Orange, 217 F.3d 1350, 1355 (11th Cir. 2000); Steakhouse, Inc. v.
City of Raleigh, 166 F.3d 634, 640 41 (4th Cir. 1999). Because ZJ does not
argue that the Littleton ordinance fails to satisfy the third Freedman
requirement, we limit our analysis here to the two procedural safeguards
clearly adopted in FW/PBS.
B
Our first inquiry is whether Littleton's ordinance satisfies the
requirement that "any restraint prior to judicial review can be imposed only for
a specified brief period during which the status quo must be maintained."
FW/PBS, 493 U.S. at 227. Although the ordinance specifies that a license
application must be approved within thirty days, Littleton, Colo., City Code
3-14-8, ZJ stresses that, before an application is accepted, (1) applicants are
required to obtain a written statement from the City's Zoning Official stating
that the proposed location is in compliance with the location requirements of
the ordinance, (2) specified persons named on the application must be
fingerprinted and photographed by the Police Department,(9) and (3) the applicant
must obtain a sales-tax license. ZJ argues that these provisions present the
possibility of indefinite postponement of a license. Id.
Justice O'Connor's opinion in FW/PBS, which announced the judgment
of the Court, held that the Dallas ordinance in question allowed for indefinite
postponement of a license because the premises had to be approved in advance
by "the health department, fire department and the building official." 493 U.S.
at 227. Although the prerequisites required by Littleton's ordinance are
arguably less onerous than those in FW/PBS, Littleton's ordinance similarly
does not specify a time limit within which the City must complete them. We
therefore consider whether they render Littleton's ordinance unconstitutional
for failure to satisfy the first requirement of Freedman and FW/PBS.
Every retail business in Colorado must obtain a sales-tax license. Colo.
Rev. Stat. 39-26-103. Because this requirement is not specific to adult
businesses, it is irrelevant to the constitutionality of the licensing ordinance at
issue in the present case. The City does not argue, however, that the other two
requirements are similarly applicable to all businesses, and we therefore
presume that they are specific to adult businesses. Littleton's ordinance
provides no assurance that the City will promptly act on a pre-application
request for a certification of zoning compliance or for fingerprinting or
photography.
During oral argument of the present case, counsel for the City offered to
make a "judicial admission" on behalf of the City that "if the Zoning Official
doesn't act, the application can be complete without his statement." Littleton's
ordinance, however, explicitly states that the "City Clerk shall not accept any
application that is not complete in every detail." Littleton, Colo., City Code
3-14-5. Such details presumably include the provision of the Zoning
Official's letter as well as the requirements of photography and fingerprinting
by the Police Department. By interpreting the ordinance as allowing for the
submission of an incomplete application in the event of delay by the Zoning
Official, appellee's counsel is stating a legal conclusion, and courts are
reluctant to treat opinions and legal conclusions as judicial admissions. See
MacDonald v. General Motors Corp., 110 F.3d 337, 341 (6th Cir. 1997); Glick
(9) Littleton's original ordinance required all principal owners, managers
and employees to be photographed and fingerprinted. Littleton, Colo.,
Ordinance 27 (1993). In 2001, the City eliminated the requirement with
respect to employees, but specified that managers, general partners and (in the
case of a corporation) the president of the corporation must be photographed
and fingerprinted. Littleton, Colo., Ordinance 13 (2001). No time limit for
the fingerprinting and photography was specified either in the original
ordinance or in the amended ordinance.
v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972); New Amsterdam Cas.
Co. v. Waller, 323 F.2d 20, 24 (4th Cir. 1963). "A matter as important as the
constitutionality of a state statute should not be decided on the basis of an advocate's
concession during oral argument." Virginia v. Am. Booksellers
Ass'n, 484 U.S. 383, 398 (1988) (Stevens, J., concurring in part and dissenting
in part).
Moreover, Freedman requires that either a "statute or authoritative
judicial construction" must specify the time limit within which the license
must be issued or denied, 80 U.S. at 5859, and there is nothing in Justice
O'Connor's opinion suggesting that this requirement was changed in FW/PBS.
Federal courts "lack jurisdiction authoritatively to construe state legislation."
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369 (1971).
Only if a state law is "readily susceptible" of an interpretation may the federal
courts subject it to a narrowing construction, and "we will not rewrite a state
law to conform it to constitutional requirements." Am. Booksellers Ass'n, 484
U.S. at 397 (majority opinion). Because Littleton's ordinance is not "readily
susceptible" to the interpretation offered by the City-to the contrary, it is
readily susceptible to the opposite interpretation-much as we are tempted, we
cannot decide this case on the basis of Littleton counsel's oral argument offer.
Although the Colorado Supreme Court upheld a similar requirement that
a zoning permit must accompany the application for a sexually-oriented-
business license in City of Colo. Springs v. 2354, Inc., 896 P.2d 272, 28182
(Colo. 1995), a separate Zoning Ordinance in that case required that a zoning
administrator "approve or deny a zoning permit application within ten working
days of the submittal." Id. at 282. Counsel for the City implicitly conceded at
oral argument that no such time limit is present in this case. Because no time
limit is specified in the ordinance or by authoritative judicial construction, we
hold that the subject ordinance's requirement that a letter from the Zoning
Official accompany the application, along with the fingerprinting and
photography requirements, are unconstitutional for failure to specify a time
limit within which the City must act.(10) See FW/PBS, 493 U.S. at 227. To the
extent that the City's motion for summary judgment on this point was granted
and ZJ's motion for partial summary judgment was denied, the order of the
district court is reversed.
C
Having held that Littleton's ordinance fails to meet the first test of
FW/PBS, we must decide whether the unconstitutional provisions are severable.
Under Colorado law, a section of a legislative enactment is severable if the
remaining portion of the statute is autonomous and the legislature's will in
passing the entire statute is not thwarted by the excision. City of Lakewood v. Colfax
Unlimited Ass'n, 634 P.2d 52, 70 (Colo. 1981) (en banc). Utilization
of a severability clause creates a presumption that the legislature would have
been satisfied with the remaining portions of the enactment. Id. A provision
will not be held severable, however, if the remaining enactment is "so
incomplete or riddled with omissions" that it lacks coherence. Id.
At issue in the present case is an ordinance that contains a severability
clause, both in its original version and in the amended version. Littleton,
Colo., Ordinance 13, 8 (2001); Littleton, Colo., Ordinance 27, 8 (1993).
More importantly, other requirements of the ordinance do not depend upon the
constitutionally suspect pre-application requirements for coherence or
consistency, and the purpose of the ordinance is not thwarted by their excision.
As a result, we conclude that the pre-application licensing provisions of the
ordinance are severable.
D
Because other provisions of Littleton's ordinance, if constitutional, may
be enforced without the pre-application requirements, we must decide whether
the remainder of the ordinance is constitutional. Thus we consider the "prompt
judicial review" requirement adopted by the Supreme Court in FW/PBS, 493
(10) As noted above, this defect in Littleton's ordinance cannot be cured by
"judicial admission," as the City's counsel suggests. Appropriate procedures
under Colorado law for the amendment of a city ordinance must be followed. It
is not our role to sit as a party to negotiations concerning the implementation
of the City's code. Littleton's ordinance can easily be amended to state that an
application may be submitted without zoning approval, fingerprinting, or
photography if a good faith request is not acted on by the Zoning Official or
the Police Department within a specified brief time period.
U.S. at 228. ZJ argues that "prompt judicial review" requires the City to
provide a "prompt decision" from the courts as to whether a license should
have been granted or denied. (Appellant's Br. at 23.) According to the City, however,
"prompt judicial review" means only that there must be "`the
possibility' or `an avenue' for prompt judicial review," and there need not be a
"judicial determination" within a short period of time. (Appellee's Am. Resp.
Br. at 47.)
The circuits are divided over this question. Some have held that "prompt
judicial review," at least with regard to licensing decisions, requires only that
the government provide prompt access to the courts. See, e.g., Boss Capital,
Inc. v. City of Casselberry, 187 F.3d 1251, 125657 (11th Cir. 1999)
(concluding that "access to prompt judicial review is sufficient for licensing
decisions"); TK's Video v. Denton County, 24 F.3d 705, 709 (5th Cir. 1994)
(same); see also Graff v. City of Chicago, 9 F.3d 1309, 1324 25 (7th Cir.
1993) (en banc) (opinion of Manion, J.) (noting the availability of the
common-law writ of certiorari and finding this procedure sufficient under
FW/PBS); Jews for Jesus v. Mass. Bay Trans. Auth., 984 F.2d 1319, 1327 (1st.
Cir. 1993) (implying that access is sufficient). Others have concluded that
"prompt judicial review" requires a prompt judicial resolution of license
denials. See Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 89293 (6th
Cir. 2000); Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1101 02
(9th Cir. 1998); 11126 Baltimore Boulevard, Inc. v. Prince George's County,
58 F.3d 988, 100001 (4th Cir. 1995).
Access to prompt judicial review was selected as the appropriate standard
by the Eleventh Circuit in Boss Capital, 187 F.3d at 1255 57. That case
enunciates two principal bases in support of its holding that mere access is
sufficient in adult-business licensing cases. First, Boss Capital holds that
Justice O'Connor modified the second Freedman requirement relating to
judicial review in the adult-business licensing context. Id. at 125556.
Second, Boss Capital reasons that this interpretation of FW/PBS is appropriate
given the difference between censorship cases and licensing cases. Id. at
1256 57.
Focusing on Justice O'Connor's language, the Eleventh Circuit points out
that Justice O'Connor uses different terminology than Justice Brennan in
describing Freedman's second requirement. Id. at 1255 (citing FW/PBS, 493
U.S. at 22829). Justice O'Connor's opinion holds that there must be "the
possibility of prompt judicial review" in the event a license is denied, FW/PBS,
493 U.S. at 228 (opinion of O'Connor, J.) (emphasis added), and states that the
Dallas ordinance failed to provide an "avenue for prompt judicial review," id. at
229 (emphasis added). Later, the requirement is characterized by Justice
O'Connor as "the availability of prompt judicial review." Id. at 230 (emphasis
added). In contrast, Justice Brennan's concurrence states that a "prompt
judicial determination must be available." Id. at 239 (Brennan, J., concurring)
(emphasis added).
Justice O'Connor's language could arguably mean that the FW/PBS Court
modified the second Freedman requirement in the context of licensing cases.
See Boss Capital, 187 F.3d at 125556 (relying partially on the difference of
language to distinguish Freedman from FW/PBS).(11) It is by no means clear,
however, that Justice O'Connor intended to change the meaning of the "prompt
judicial review" requirement. First, when Justice O'Connor refers to "prompt
judicial review," she cites to Freedman, which unequivocally stated that the
procedure must "assure a prompt final judicial determination." 380 U.S. at 59;
see also 11126 Baltimore Boulevard, 58 F.3d at 999 (discussing this point).
Other decisions following Freedman have used the phrase "prompt judicial
review" to indicate a prompt judicial determination, albeit in a censorship context.
See 11126 Baltimore Boulevard, 58 F.3d at 1000 (listing several
Supreme Court cases). Moreover, elsewhere in her opinion in FW/PBS, Justice
O'Connor states that the "first two safeguards" provided for by Freedman are
"essential." FW/PBS, 493 U.S. at 228. Although Justice O'Connor inevitably
qualifies the prompt judicial review requirement by referring to the
"possibility," "availability," or "avenue" of such review, such qualification most
likely amounts to an acknowledgment that it is up to the plaintiff to decide
whether or not to seek judicial review. This language does not necessarily
indicate any intent to weaken the second Freedman requirement.
Parties always have access to the courts. See FW/PBS, 493 U.S. at 248
(White, J., dissenting) ("[N]o one suggests that licensing decisions are not
subject to immediate appeal to the courts."); Baby Tam, 154 F.3d at 1101 ("[A]
person always has a judicial forum when his speech is allegedly infringed."
(quoting Graff, 9 F.3d at 1324)). Judicial review is available regardless of
whether an applicable state court procedure is expressly mentioned in the
ordinance. In order to have "prompt judicial review," however, a party
necessarily must be able to obtain a decision, for "without a decision, the most
exhaustive review is worthless."(12) Baby Tam, 154 F.3d at 110102. Thus,
(11) If the O'Connor opinion did modify Freedman's "prompt judicial
review" requirement for the licensing context, then it arguably struck down the
ordinance at issue in FW/PBS on a narrower ground (failure to provide prompt
access to judicial review) than the Brennan concurrence would have (failure to
provide the prompt judicial determination required by Freedman). If that is the
case, then the O'Connor restatement of the "prompt judicial review"
requirement might well state the law, at least in the context of adult business
licensing. See Marks v. United States, 430 U.S. 188, 193 (1977) ("When a
fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments on the
narrowest grounds." (quotation omitted)). Whether this would constitute the
narrowest ground for decision is debatable, however. See 11126 Baltimore
Boulevard, 58 F.3d at 999 & n.15 (arguing that, if Justice O'Connor modified
the Freedman requirement, this was not the narrowest ground for decision).
Because we conclude that Justice O'Connor did not modify the second
Freedman requirement in the licensing context, we need not decide which
ground for decision in FW/PBS was the narrowest.
(12) Baby Tam draws an analogy to baseball. Judicial review without a
decision "would be like throwing a pitch and not getting a call. As legendary
major league umpire Bill Klem once said to an inquisitive catcher: `It ain't nothin'
till I call it.' This is also true of judicial review. Until the judicial
officer makes the call, it ain't nothin'.'" 154 F.3d at 1102.
Justice O'Connor's "avenue for prompt judicial review" requirement in a First
Amendment context makes far more sense if it is understood to mean a prompt
final judicial determination.
The Eleventh Circuit further points out in Boss Capital that Freedman and
the line of cases following it can be distinguished from adult-business
licensing cases on the grounds that they involved censorship rather than
licensing. Justice O'Connor held in FW/PBS that licensing schemes do not
involve "the grave `dangers of a censorship system,'" and therefore "the full
procedural protections set forth in Freedman are not required." 493 U.S. at
228 (citation omitted). As the Eleventh Circuit notes, adult-business licensing
schemes primarily involve "mundane and ministerial factors," such as the
general qualifications of each applicant.(13) Boss Capital, 187 F.3d at 1256. In
contrast, censorship cases involve a highly subjective judgment about the
nature of the suspect material.
In addition, the Eleventh Circuit notes, "unlike movie distributors who
might show a given film in hundreds of theaters around the country," applicants for
adult-business licenses arguably have a greater incentive "to stick it out and
see litigation through to its end." Id. at 1256. Freedman's rationale therefore
arguably makes less sense in the licensing context, and Boss Capital concludes
that the need for a prompt judicial decision is therefore "less compelling."(14)
See Boss Capital, 187 F.3d at 125657 (arguing that access to prompt judicial
review is sufficient for licensing cases). Because the ordinance in dispute
contained an explicit judicial review provision, the Eleventh Circuit held it
constitutional. Id. at 1255, 1257.
Boss Capital draws a rational distinction between licensing cases and
censorship cases. The purpose of Justice O'Connor's language distinguishing
between these two categories, however, is most logically understood as an
attempt at explaining why Freedman's third safeguard-that the burden of going
to court and the burden of proof must be on the censor-is not appropriate to
the licensing context. See FW/PBS, 493 U.S. at 229 30 (concluding that the
third Freedman requirement does not apply to licensing cases). If Justice
(13) Littleton's ordinance, for example, lists eight specific reasons to deny
a licensealthough the ordinance does not explicitly state that this list is
exclusiveand these reasons do not involve discretion on the part of the
licensing official. Littleton, Colo., City Code 3-14-8.
(14) Analyzing the constitutionality of a permit requirement for a public
forum, the Supreme Court has recently held that an ordinance that gives no
discretion to the licensing official does not threaten to stifle free expression.
See Thomas v. Chi. Park Dist., 122 S. Ct. 775, 780-81 (2002). However,
Thomas distinguishes FW/PBS on the grounds that "it involved a licensing
scheme that target[ed] businesses purveying sexually explicit speech," id. at
780 n.2 (quotation omitted), and the Court did not overrule its earlier decision
that the first two Freedman requirements must be applied in adult-business
licensing cases.
O'Connor had intended to adopt a different judicial review requirement for
licensing cases, she could have done so explicitly, just as she explicitly
rejected the burden-shifting requirement.
Other circuits have held that the judicial review requirement of Freedman
was not altered by FW/PBS. As the Sixth Circuit notes, Justice O'Connor "gave
no indication that she was modifying the second requirement of prompt judicial
review" in the licensing context. Nightclubs, 202 F.3d at 893. According to
the Ninth Circuit, the FW/PBS plurality "took issue only with Freedman's
requirement that the censor bear the cost of going to court to obtain judicial
review; otherwise, FW/PBS offered nothing different from Freedman's concept
of what `judicial review' meant." Baby Tam, 154 F.3d at 1102; see also 11126
Baltimore Boulevard, 58 F.3d at 999 (reaching the same conclusion). If the
Court adopted the Freedman requirement without modification in FW/PBS, then
the distinction between licensing and censorship is not relevant here.
Even if the rationale behind Freedman is specific to censorship cases,
there is an equally valid rationale for requiring prompt judicial review in adult-
business licensing cases. Although adult-business licensing ordinances are
technically considered "content-neutral," ZJ Gifts D-2, L.L.C. v. City of
Aurora, 136 F.3d 683, 68688 (10th Cir. 1998), they are distinguishable from
other content-neutral time, place, and manner restrictions insofar as they target
"businesses purveying sexually explicit speech." Thomas v. Chi. Park Dist.,
122 S. Ct. at 780 n.2 (2002) (quoting FW/PBS, 493 U.S. at 224). A licensing
official may have little or no discretion in reviewing an application, but he or
she may be tempted nonetheless to overstep the bounds of the ordinance.
Adult businesses are controversial, and the possibility exists that
licensing officials might allow their personal views on the morality of sexually
explicit entertainment to sway a decision on an application. Given the strong
feelings that adult businesses can engender, there must be a prompt judicial
determination to ensure that licensing officials do not exceed their authority
under the ordinance in their zeal to protect the local community. ZJ sells
sexually explicit magazines and videocassette tapes, which are presumptively
protected by the First Amendment, see FW/PBS, 493 U.S. at 224, and the
danger that an ordinance like Littleton's may be improperly used as a
subterfuge for censorship is too great to overlook the necessity for a prompt
judicial determination.
In short, we are not persuaded by those circuits that have concluded that
mere "access" to judicial review is sufficient in licensing cases. Following the
Fourth, Sixth and Ninth Circuits, we hold that, in the event that an adult-
business license is denied, FW/PBS requires a prompt final judicial decision
regarding the validity of the denial. "[A] theoretical possibility of expeditious
judicial review is not constitutionally sufficient." Nightclubs, 202 F.3d at 892.
"While we trust state courts to exercise due diligence, we cannot be sure that a
state judge . . . toiling under a busy docket, will conduct a hearing and render a
decision in a prompt manner." Id. Prompt judicial review, including a prompt
final decision, must be assured in all First Amendment licensing cases in order
for the second requirement of Freedman and FW/PBS to be satisfied. What
constitutes a prompt judicial determination in the adult-business licensing
context is to be determined by reference to the Supreme Court's jurisprudence
following Freedman. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546, 56162 (1975) (holding that a judicial review process lasting more
than five months was not prompt).
Littleton's ordinance allows a party whose license has been denied to
appeal to the Colorado district court under Colorado Rule of Civil Procedure
106(a)(4). This Rule allows an adverse decision regarding the license to be
given expedited review in the trial court's discretion. 2354 Inc., 896 P.2d at
284 (citing Colo. R. Civ. P. 106(a)(4)(VIII)). Because this Rule does not
assure that license decisions will be given expedited review, however, it does
not save Littleton's ordinance. Accordingly, the order of the district court
granting summary judgment for the City is reversed to the extent that it held
the judicial review procedure to be constitutionally sufficient.
V
Finally, ZJ attacks the location restrictions in Littleton's ordinance as
unconstitutional because they do not provide reasonable alternatives of
communication, as required by City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986).(15) It is the City's burden to demonstrate that its ordinance
meets this requirement. See ZJ Gifts, 136 F.3d at 688.
Renton considered a local ordinance that restricted the location of adult
businesses. 475 U.S. at 44. Content-neutral zoning ordinances, the Court held,
are permissible so long as "reasonable alternative avenues of communication"
are left open, id. at 53, a question that is answered through an analysis of how
much land is available in which adult businesses may be located under the
zoning system, id. at 5354. In undertaking that analysis, the courts must
examine what land is actually available, but also must keep in mind that adult
businesses must "fend for themselves in the real estate market, on an equal
footing with other prospective purchasers and lessees." Id. at 54.
How much land is sufficient to constitute "reasonable alternative avenues
of communication" is a question that the Renton Court left open. In Renton, the
ordinance left "520 acres, or more than five percent of the entire land area
of" the city, open for adult businesses, with the land "in all stages of
development from raw land to developed, industrial, warehouse, office, and
shopping space that is criss-crossed by freeways, highways, and roads." Id. at
53 (quotation omitted). The Renton Court determined that the ordinance
"easily meets" the requirement of providing a "reasonable opportunity to open
and operate an adult theater within the city." Id. at 54.
Under Littleton's ordinance, there are approximately one-hundred acres
of land that are within industrial zones and outside the minimum distance from
nearby schools, day care centers, and correctional facilities.(16) This land
constitutes between 1.2 and 1.3% of the total acreage of the City of Littleton.
At least one other court of appeals has found this proportion of land to be
sufficient under Renton. See Lakeland Lounge of Jackson, Inc. v. City of
Jackson, 973 F.2d 1255, 1260 (5th Cir. 1992).
(15) In its reply and supplemental briefing, ZJ argued that the location
restrictions in Littleton's ordinance should be viewed as "content-based"
restrictions on speech subject to strict scrutiny. In particular, ZJ argues that
the recent Supreme Court decision in Thomas, 122 S. Ct. 775 (2002), and
Justice Kennedy's opinion in City of Los Angeles v. Alameda Books, Inc., 122
S. Ct. 1728, 1739 (2002) (Kennedy, J., concurring in the judgment), support
this claim. This court, however, has previously held that a nearly identical
ordinance should be reviewed as a "content-neutral" regulation subject to
intermediate scrutiny. See ZJ Gifts, 136 F.3d at 686-88. We see nothing in
either Thomas or Alameda Books that requires reconsideration of our
conclusion as to the applicable standard of review.
(16) ZJ argues that some of these parcels are unavailable because portions
of the parcels are within five-hundred feet of schools, day care centers, and
correctional facilities. However, as the record shows, the majority of these
parcels are outside the distance limits. Under Littleton's ordinance, the
distance limits are only violated if the exterior wall of the structure in which
the adult business is located is within the minimum distance from the
neighboring use. Thus, these parcels are available for use by an adult business
as long as the business locates in the portions of the parcels where such uses
are permitted.
ZJ argues that portions of this land are unavailable because specific
parcels are (1) currently occupied by large-scale manufacturing uses, see
Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 153132 (9th Cir.
1993), or (2) currently owned by governmental entities, see Centerfold Club,
Inc. v. City of St. Petersburg, 969 F. Supp. 1288, 1305 (M.D. Fla. 1997).
First, we disagree with the notion that warehouses and other large-scale
manufacturing uses must be excluded per se from any calculation of whether
there is sufficient land for adult business uses. In Renton itself the Supreme
Court noted the diversity of property that was available for adult business use
under the ordinance-"industrial, warehouse, office, and shopping space,"
Renton, 475 U.S. at 53 (emphasis added)-in concluding that there was
sufficient land available. Similarly, Littleton's ordinance leaves a diversity of
different types of properties available for use by an adult business, including
large-scale manufacturing and warehouse uses. Under Renton, there is no need
to exclude those uses from our analysis.(17) While it may indeed be more
difficult and more expensive for an adult-business owner to acquire and convert these
types of properties, there is no requirement that those businessmen must
"be able to obtain sites at bargain prices." Id. at 54.
As for inclusion of the government-owned properties, we need not decide
whether that is permissible under the Renton analysis. Even excluding those
parcels that are government-owned according to evidence introduced by ZJ,
there is sufficient property zoned for adult business uses to meet the
requirements of Renton. ZJ submitted evidence identifying only one specific
property-the Littleton City Shops between Belleview Avenue and Prentice
Avenue, constituting twelve acres-as being owned by the government. Other
properties mentioned by ZJ in its brief-a fire training center, a nature area,
and the Arapahoe County Government Center-are not identified by parcel, nor
does ZJ provide any information as to their total acreage. However, even
giving ZJ the benefit of the doubt as to these additional properties, based on
the information we can glean from the record, removing these properties would
only reduce the total available area by approximately ten acres.(18) Thus, the
(17) We add that we do not address a situation where all or nearly all
properties consist of large-scale manufacturing and warehouse uses, such that
the diversity of land uses described in Renton does not exist. In such a
situation, the municipality may be "effectively denying" adult businesses "a
reasonable opportunity to open and operate." Renton, 475 U.S. at 54.
(18) In reaching this conclusion, we draw the following inferences in ZJ's
favor: Littleton's fire protection center and the abandoned city property are
located in an industrial zone that comprises approximately eight acres near the
intersection of Chenango and Vallejo Streets. We assume that all of those
properties were used by both the fire protection center and the abandoned city
property, and we remove them from our analysis. As for the Arapahoe
Government Center, ZJ relies on the City's maps in the record as evidence
regarding its location on "South Crestline Avenue." We can find only an
ambiguous reference for a parcel south of West Crestline Avenue, whichappears to occupy
about two acres of the industrial zones. ZJ has provided us
with absolutely no information from which an inference can be drawn regarding
the specific location or acreage of Littleton's nature area.
total area available excluding government properties would be about seventy-
eight acres, or just under one percent of the total area of the City.
Moreover, excluding both the government properties to which ZJ objects
as well as those properties that are implicated by the minimum distance
requirements of the ordinance, the City has listed over twenty sites within the
industrial districts that its real estate expert stated would be available for adult
businesses. Given the small population of Littleton (forty-thousand people),
and the fact that ZJ is the only adult business that is currently located in
Littleton, this is a sufficient number of available sites. See Diamond v. City of
Taft, 215 F.3d 1052, 1058 (9th Cir. 2000) (holding seven available sites
sufficient where only one business sought to locate within the municipality),
cert. denied, 531 U.S. 1072 (2001);(19) see also Boss Capital, 187 F.3d at 1254
(listing factors to be considered in analyzing whether there are sufficient sites for
adult businesses, including geographical size of the locality, location of
sites, number of adult businesses currently operating or seeking permission to operate,
and population). We conclude that the ordinance meets the
requirements of Renton,(20) and the section of the district court order dealing
with the location requirements of Littleton's ordinance is affirmed.
VI
In sum, we conclude that ZJ has standing to challenge the pre-application
and location requirements of the ordinance and the judicial review procedure.
ZJ lacks standing, however, to challenge the ordinance as vague, attack the
ordinance's license revocation and suspension provisions, or challenge the age
and criminal history restrictions in the ordinance. As to the merits of ZJ's
challenge, we hold that the judicial review procedure and pre-application
requirements of Littleton's ordinance are unconstitutional, but that the location
requirements of the ordinance are constitutional.
(19) Where an adult-business zoning regulation prohibits the location of
one adult business within a minimum distance of another oneas Littleton's
ordinance doessome courts have required the analysis of the minimum
number of sites to take into account those spacing requirements, dramatically
reducing the potential number of sites. See, e.g., Young v. City of Simi Valley,
216 F.3d 807, 821 n.13 (9th Cir. 2000). ZJ has never argued that we should
incorporate the spacing requirements into our analysis, and given that ZJ is the
only adult business currently operating or seeking to operate in Littleton, such
an adjustment would be inappropriate in the first place. See Diamond, 215 F.3d
at 1057-58.
(20) ZJ urges us to hold that the Colorado Constitution provides broader
protections than the United States Constitution in this context. None of the
cases cited by ZJ in support of this proposition, however, involves a challenge
to adult-business licensing ordinances. See Bock v. Westminister Mall Co.,
819 P.2d 55, 56 (Colo. 1991) (discussing plaintiffs' right to distribute
political leaflets in a shopping mall); People v. Ford, 773 P.2d 1059, 1061
(Colo. 1989) (addressing the constitutionality of the Colorado obscenity
statute); People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 353
(Colo. 1985) (same). In analyzing a local ordinance regulating nude dancing,
the Colorado Supreme Court relied almost exclusively on federal cases in
determining that the ordinance did not violate the free speech protections of
either the federal or state constitutions. See 7250 Corp. v. Bd. of County
Comm'rs, 799 P.2d 917, 924-28 (Colo. 1990) (en banc). We have found no
evidence that in this particular field of free speech jurisprudence the Colorado
courts have interpreted the state constitution to provide greater protection than
the federal Constitution.
The judgment of the district court is AFFIRMED in part and
REVERSED in part.(21)
(21) We grant the City's motions to file additional supplemental
appendices.